People have radically different views of the patent system. Critics see it as an unmitigated disaster, while many in the patent bar don't understand what all the fuss is about. But it's rare for prominent advocates of these contrasting perspectives to engage each other directly.

But that happened on Wednesday in a teleconference debate hosted by the Federalist Society. Defending the status quo was Judge Paul Michel. Until 2010, Michel was the chief judge of the Federal Circuit Court of Appeals, a post that made him the nation's top patent judge. He debated Judge Richard Posner, a Chicago-area appeals court judge who threw out a patent lawsuit between Apple and Motorola earlier this year, complaining that the patent system had descended into "chaos."

"A failed system"

Because Congress gave Judge Michel's Federal Circuit jurisdiction over all patent appeals in 1982, Judge Posner's own Seventh Circuit Court of Appeals doesn't hear any patent cases. But in recent years Posner has sought to learn about patent law by volunteering to serve temporarily on other courts that do hear patent cases. That's how he came to be the trial judge in the battle between Apple and Motorola. And it also allowed him to spend time on the Federal Circuit bench.

Posner's first-hand experiences with the patent system helped to turn him into a harsh critic. "Our patent law is a failed system," he declared on Wednesday. He cited a laundry list of problems, including an under-staffed and poorly managed patent office and expert witnesses whose credibility is undermined by fees paid by litigants.

Striking closer to home, Posner accused the Federal Circuit—the court Michel headed until 2010 and a sister court to Posner's own Seventh Circuit—of being too favorable to patent holders. A specialized court like the Federal Circuit, he said, tends to take a "promotional view of the activity it regulates." That "promotional view" has caused the court to become "too welcoming to patents," watering down the standards for patent validity.

Michel disputed this point, insisting the court he served on for more than two decades has been "quite balanced." Readers can judge for themselves by reading our recent 30th anniversary retrospective on the Federal Circuit.

Michel acknowledged the current patent system has "friction points" and "shortcomings." But he insisted that "to say that it's broken or failed hugely overstates the real situation."

"The best patent system on the planet"

Michel argued the focus on the costs of litigation is misguided because most patent disputes lead to a license agreement being signed before they reach the courthouse. This system of licensing, he argued, is "working quite well on the whole." Michel contends the United States has "the best patent system on the planet," and that it is "widely imitated" around the world.

In Michel's view one of the big problems with the patent system is actually that people criticize it too much. No, really: "The patent system has been so excessively criticized with overstated claims by so many commentators that it has been substantially weakened in the last five to seven years," Michel said. (We at Ars had no idea our words were so powerful!)

Michel downplayed concerns that 20 years of patent protection is excessive for fast-moving industries. "I don't see the harm of patents being 20 years even in technologies that may have a very fast situation as in the software industry. Patents that have no commercial value aren't enforced. If they become passe, they're still there, but they don't cause much problems that I can see."

"We need a stronger patent system, not a weaker patent system," Michel argued. The incentives currently provided by the patent system "are not adequate now and we need sharply increased incentives."

These calls for even more patent protection "frightened me a little bit," Posner countered. "For most inventive activity, the incentives are quite adequate without patent protection. So when you throw in protections, all you do is increase the costs of the competitive process by entangling firms in litigation."

Judge Posner acknowledged that patents are needed in some industries, notably pharmaceuticals, to provide incentives for investment. But he argued that "in most industries there's very little need for patent protection." He argued this is particularly true in software, an industry where product development costs are low and first-mover advantages can be significant. "I don't want to say that [patents are] never appropriate for software," Posner said, but "I think generally it's just a clog on competition," enriching trolls, trial lawyers, and expert witnesses, but not the general public.

Posner pointed to several other reasons that patents were a poor fit for software. He argued that the 20-year term of patents was way too long for the fast-paced software industry. He noted that software innovation tends to be piecemeal. "A software program or tablet might have thousands of components, resulting in huge patent thickets," he said. This will create "rich opportunities to try to hamstring competitors by suing them."

Judge Michel didn't directly address Posner's point about the dangers of patent thickets. And indeed, if our May interview with Michel was any indication, he may not even understand how patent thickets create problems for IT firms. "If software is less dependent on patents, fine then. Let software use patents less as they choose," he told us in May. Of course, the whole problem is that software firms can't opt out of the patent system; choosing not to seek patents doesn't give a software firm any protection against lawsuits from others.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

High court appointees should be forced to code and deploy an innovative app before they get their judgeships. When they get sued for using roll-over links or in-app purchasing by some troll in east Texas, they might think twice about software patents.

I love how personally invested these pro-patent types are. Their arguments always seem to boil down to "patents are important because my reputation depends on it". Great, but law isn't supposed to be about the ego and desires of individual men, but about justice and the good of society.

High court appointees should be forced to code and deploy an innovative app before they get their judgeships. When they get sued for using roll-over links or in-app purchasing by some troll in east Texas, they might think twice about software patents.

Isn't Posner the one that actually does know how to code? Or was it Alsup.

High court appointees should be forced to code and deploy an innovative app before they get their judgeships. When they get sued for using roll-over links or in-app purchasing by some troll in east Texas, they might think twice about software patents.

Isn't Posner the one that actually does know how to code? Or was it Alsup.

High court appointees should be forced to code and deploy an innovative app before they get their judgeships. When they get sued for using roll-over links or in-app purchasing by some troll in east Texas, they might think twice about software patents.

None of the issues with the patent system are unique to software, and are pervasive throughout the system.

Software just tends to be the poster child for the issues, as it is the most litigated and a widely applicable field.

Vague claims, indefiniteness, obviousness, and the costs and asymmetic risks of litigation are universal issues.

I tend to agree with the title. The system, if you bother to take the time to understand it, is actually a very good and well built system. The only real issue is the processes that take place inside the courtroom related to the system, it;s abysmally slow and ill equipped.

Yes, I'm all for a lot more people being trained up and an expanded USPTO, that would not hurt at all, but the real thing we need is a streamlined court process akin to contract law, where patent cases are heard outside the nornal court system with judges trained on these issues, with tight cooperation from the USPTO, and with case resolution happening in months, not years. If the system was strictly enforced, due dilligence would take care of itself and nobody would infringe.

The problem we've had the last 5-7 years is not that the system doesn't work, it's just that it's a) too slow and expensive to try a case and b) the punishments for infringement are often far less than the profits made breaking the law, especially by the time a ruling finally comes alone when the product is no longer sold, and markshares have been swayed altering the consumerbase. This creates a situation where companies are literally encouraged to infringe and deal with the (smaller cost than compliance) concequences later.

Also, we've had a paradign shift in the last 5 years. We went from a well balanced industry based on long evolving GSM and CDMA patent pools tied mostly to FRAND tech stemming from legalcy handsets to a worl where phones now have full-on Operating Systems and UIs covered by thousands of aptents that never applied to phones held by people who never shared them with phone makers before, who are eager to enter than industry and did so in a big way. Apple and MS can get 3G and 4G patents easily, most of them are FRAND, but Nokia can;t get UI patents that are private utility patents without paying through the nose. MS, IBM, Apple, et al have shared those openly for years, just not with HTC, Nokia, etc, and little of this is standards based, putting the phone companies in a piosition where they have to share their stuff, but are refused access to toher things needed to make smartphones that users want (note, none of these things apple has are required to make a smartphone, they;re just required to make a POPULAR smartphone, or a user friendly one.)

So, Samsung, motorolla, HTC, Nokia, and others did the only thing they could, they strarted battles over FRAND asking extortive rates in the hopes to slow competition that they coudl not compete with. It mostly backfired, except for Samsung who went one step further and violated trademarks as well as patents, and mirroed the competition instead of designing around it. Samsung took a big gamble, lost $1B (maybe more), but they WON their gamble, as they have several billion in profit and 30% of the market they otherwise would not have had. THIS is what has to be fixed. If the courts could have stopped those battles over FRAND from the beginning, ruled quickly on fair rates, and within say months rules Apple, MS, et al's patents were either valid or not and demanded licensing be paid under threat of willful infringement and product banishment, Samsung would have changed their designs, Android would have been significantly delayed or less functional, and likely we'de be living in an iOS and WebOS world where android made only a little dent.

You don't think some of the software patents given are for things that are obvious, and frequently had lots of prior art?

Things like pinch to zoom (which was thrown out recently I believe, but it should have never been awarded in the first place).

Does this judge have absolutely no understanding of the amount of diplomatic arm-twisting that the US does in order to ensure that the parts of its IP law system it likes are 'widely imitated around the world'?

It isn't exactly a matter of the benighted foreigners rushing to embrace our superior good ideas...

It would be cool to see what software patents from 1992 are expiring now. We can finaly use all the innovations from Windows 3.1 \0/

I think a lot of things genuinely worth patenting, because in filing the patent they tell you how they did this innovative thing, are still around from back then. Even in computing.

You still use some old stuff like jpegs, mp3 and the mouse/kbd user interface paradigm (buttons, entries, windows, etc).

Clarification: I don't think all of those deserved patent protection. The interface stuff I definitely don't think deserved it. It's very rare that I see any kind of user interface that seems worth patenting primarily because we get the "secrets of how it works" by using it at a demo booth so society gets nothing in exchange for the patent.

He argued this is particularly true in software, an industry where product development costs are low and first-mover advantages can be significant.

Wow, this is amazingly out of touch. Back when I worked on Windows in 1999-2001, estimated development costs were $1 million per day, and $1.5 million per day in ongoing support. I'm certain it costs far more to develop and maintain today than it did more than a decade ago.

The second part is also a joke. Its extremely difficult to find a section of the software industry still dominated by the first mover, whether we are talking spreadsheets and office apps, web browsers, social media or music services. When is the last time you used Napster to play some music in WinAMP on your Palm Pre and then shared that info with your family on Friendster, accessed via Mosiac which was booted on a system running the latest GUI OS descended from DR-DOS?

First mover means shit in this industry, and patents have nothing to do with it.

It would be cool to see what software patents from 1992 are expiring now. We can finaly use all the innovations from Windows 3.1 \0/

Some data compression patents expired a while back. They were mostly responsible for the creation of PNG to avoid JPEG, and for pretty much all available CODECs being patent encumbered, or supposedly so (by the patent holders supposition at any rate).

The thing is, patents are an exception to the law. What they grant, monopoly, is a trade off to get people to SHARE their inventions. A patent is useful if, in the absence of the document that describes it or a product that implements it, it would be very hard for someone to come up with it independently.

Which goes to the core of the problem with software patents: no one writes software by looking up patents. They usually don't look at how the competing software works either, particularly these days of SaaS, where that is just not possible.

So, when a patent trolls sue someone, that patent is almost by definition invalid: the fact that others arrived independently at it (often MANY others), and there isn't a competing product implementing it, goes to show there simply isn't any big deal about it.

Anyway, that's all moot. Software is mathematics, mathematics is unpatentable by law, and, hopefully, someday the law will catch up with the fact that whether people understand that software is math or not doesn't make that verifiable fact untrue.

I just like the 3.1 refence as it's useful to put into perspective the 20 year terms referenced in the article. I think it's a lot easier on the brain to think 20 years into the future seems reasonable, it not that far off, than to think, if I had a patent when windows 3.1 was released it would just now be expiring.

Michel disputed this point, insisting the court he served on for more than two decades has been "quite balanced." Readers can judge for themselves by reading our recent 30th anniversary retrospective on the Federal Circuit.

I agree with a lot of the criticism, but pointing readers to an article entitled "How a Rogue Appeals Court Wrecked the Patent System" to make their own judgment about the impartiality of the Federal Circuit is just a bit ironic.

That would be like me saying, "Lee disputed this point, insisting his coverage of the patent system has been 'quite balanced.' Readers can make up their own minds by reading this post I wrote a while ago about how biased everything Lee writes about the patent system is."

Michel disputed this point, insisting the court he served on for more than two decades has been "quite balanced." Readers can judge for themselves by reading our recent 30th anniversary retrospective on the Federal Circuit.

I agree with a lot of the criticism, but pointing readers to an article entitled "How a Rogue Appeals Court Wrecked the Patent System" to make their own judgment about the impartiality of the Federal Circuit is just a bit ironic.

That would be like me saying, "Lee disputed this point, insisting his coverage of the patent system has been 'quite balanced.' Readers can make up their own minds by reading this post I wrote a while ago about how biased everything Lee writes about the patent system is."

I considered pointing this out, but then there was a quote that showed how ignorant Posner is about software and I decided to pick my battles. But yes, totally agreed.

Michel disputed this point, insisting the court he served on for more than two decades has been "quite balanced." Readers can judge for themselves by reading our recent 30th anniversary retrospective on the Federal Circuit.

I agree with a lot of the criticism, but pointing readers to an article entitled "How a Rogue Appeals Court Wrecked the Patent System" to make their own judgment about the impartiality of the Federal Circuit is just a bit ironic.

That would be like me saying, "Lee disputed this point, insisting his coverage of the patent system has been 'quite balanced.' Readers can make up their own minds by reading this post I wrote a while ago about how biased everything Lee writes about the patent system is."

I considered pointing this out, but then there was a quote that showed how ignorant Posner is about software and I decided to pick my battles. But yes, totally agreed.

You pretty regularly bash Posner on these forums, usually for fairly outlandish or exaggerated reasons. What do you have against him anyway? The whole ultra-libertarian thing?

I tend to agree with the title. The system, if you bother to take the time to understand it, is actually a very good and well built system. The only real issue is the processes that take place inside the courtroom related to the system, it;s abysmally slow and ill equipped.

That's a nice self nuke there.

If you are dependent on prompt action by the courts you have already lost the argument here.

Your attitude is perfect illustration of why the system is so horribly broken.

The PTO assumes that the courts will sort out the mess that they create. The courts assume that the PTO is acting in good faith. The PTO is not acting in good faith. It's rubber stamping obvious nonsense.

He does say some curious things, but he also has a bit more critical view than is expressed in the article and is aware of at least some of the issues.

Thanks for the link. Can you say more about this? Which important concessions by Michel am I ignoring? He does mention some problems, such as the failure to provide sufficient resources to the judiciary and USPTO, but I think the overall thrust of his remarks were strongly defensive of the system.

When writing a piece like this I necessarily have to pick some quotes and ignore the rest. I think I fairly represented his views, but I'm interested in constructive feedback.

Patents are a monopoly and only those that benefit from it would think it's a good idea. All monopolies cripple the economy; the fastest growing ones are those without patents. It's time to stop this nonsense and abolish patents completely.

I tend to agree with the title. The system, if you bother to take the time to understand it, is actually a very good and well built system. The only real issue is the processes that take place inside the courtroom related to the system, it;s abysmally slow and ill equipped.

Yes, I'm all for a lot more people being trained up and an expanded USPTO, that would not hurt at all, but the real thing we need is a streamlined court process akin to contract law, where patent cases are heard outside the nornal court system with judges trained on these issues, with tight cooperation from the USPTO, and with case resolution happening in months, not years. If the system was strictly enforced, due dilligence would take care of itself and nobody would infringe.

The problem we've had the last 5-7 years is not that the system doesn't work, it's just that it's a) too slow and expensive to try a case and b) the punishments for infringement are often far less than the profits made breaking the law, especially by the time a ruling finally comes alone when the product is no longer sold, and markshares have been swayed altering the consumerbase. This creates a situation where companies are literally encouraged to infringe and deal with the (smaller cost than compliance) concequences later.

Also, we've had a paradign shift in the last 5 years. We went from a well balanced industry based on long evolving GSM and CDMA patent pools tied mostly to FRAND tech stemming from legalcy handsets to a worl where phones now have full-on Operating Systems and UIs covered by thousands of aptents that never applied to phones held by people who never shared them with phone makers before, who are eager to enter than industry and did so in a big way. Apple and MS can get 3G and 4G patents easily, most of them are FRAND, but Nokia can;t get UI patents that are private utility patents without paying through the nose. MS, IBM, Apple, et al have shared those openly for years, just not with HTC, Nokia, etc, and little of this is standards based, putting the phone companies in a piosition where they have to share their stuff, but are refused access to toher things needed to make smartphones that users want (note, none of these things apple has are required to make a smartphone, they;re just required to make a POPULAR smartphone, or a user friendly one.)

So, Samsung, motorolla, HTC, Nokia, and others did the only thing they could, they strarted battles over FRAND asking extortive rates in the hopes to slow competition that they coudl not compete with. It mostly backfired, except for Samsung who went one step further and violated trademarks as well as patents, and mirroed the competition instead of designing around it. Samsung took a big gamble, lost $1B (maybe more), but they WON their gamble, as they have several billion in profit and 30% of the market they otherwise would not have had. THIS is what has to be fixed. If the courts could have stopped those battles over FRAND from the beginning, ruled quickly on fair rates, and within say months rules Apple, MS, et al's patents were either valid or not and demanded licensing be paid under threat of willful infringement and product banishment, Samsung would have changed their designs, Android would have been significantly delayed or less functional, and likely we'de be living in an iOS and WebOS world where android made only a little dent.

Michel disputed this point, insisting the court he served on for more than two decades has been "quite balanced." Readers can judge for themselves by reading our recent 30th anniversary retrospective on the Federal Circuit.

I agree with a lot of the criticism, but pointing readers to an article entitled "How a Rogue Appeals Court Wrecked the Patent System" to make their own judgment about the impartiality of the Federal Circuit is just a bit ironic.

That would be like me saying, "Lee disputed this point, insisting his coverage of the patent system has been 'quite balanced.' Readers can make up their own minds by reading this post I wrote a while ago about how biased everything Lee writes about the patent system is."

I considered pointing this out, but then there was a quote that showed how ignorant Posner is about software and I decided to pick my battles. But yes, totally agreed.

You pretty regularly bash Posner on these forums, usually for fairly outlandish or exaggerated reasons. What do you have against him anyway? The whole ultra-libertarian thing?

I highlighted it above already, he has a ridiculously simplified view of the costs of software development and support, and a strange belief that first movers have an automatic advantage. These mistaken views lead him to discredit a system he clearly does not understand.

Virtually every 'first mover' in the tech industry is a has-been already. Patents would neither have helped nor harmed them, they are irrelevent to the issue.

And costs aren't remotely as low as he thinks. Microsoft just spent $8 billion on Skype. Google spent how many billion acquiring Android, and another $12.5 billion for Motorola. HP (mis)spent billions on WebOS. Smaller app developers are bought all the time for millions if not hundreds of millions. If software was 'cheap' to develop, nobody would pay these prices for those who have taken the time to develop it.

The truth is development is incredibly expensive, especially in software. Variables are endless, platforms multiply monthly, and standards compliance is a moving target. Its an endless challenge, and the employees required are virtually all in the six figure salary range.

Posner's view seems to be stuck in the garage developer days, where a group of teenagers or college kids get together and write the next great thing. This still happens, but its the exception, not the norm.

I just completed working on a small project that will have big implications for the quality of the service we provide. My boss asked me if I thought any of the work I had done could be patentable. I [calmly] explained that I don't really believe in software patents, and trying to patent another example of, what I like to call, "a computer doing what computers do" seemed silly to me.

It didn't really go over well. I got a nice long lecture about how this wasn't helping the business. Next time I will just answer, "no, I don't think it is patentable". Just a word of caution to others out there :-)

Virtually every 'first mover' in the tech industry is a has-been already. Patents would neither have helped nor harmed them, they are irrelevent to the issue.

But their patents linger on, causing harm in the industry.

Quote:

And costs aren't remotely as low as he thinks. Microsoft just spent $8 billion on Skype.

Which is irrelevant from a developmental perspective. Microsoft spent $8B not because the development of a competing solution would have been hard, but because Microsoft wanted the brand and the customer base.

Quote:

Google spent how many billion acquiring Android, and another $12.5 billion for Motorola.

Android was acquired for $50M, which IMO was too much. Motorola was bought, apparently, purely for the patents it possesses so Google could defend itself from competitors that like to abuse the system.

Quote:

HP (mis)spent billions on WebOS.

Managerial incompetence has its costs, yes.

Quote:

Smaller app developers are bought all the time for millions if not hundreds of millions.

Or billions, if you're willing to let your foolish CEO write the check for something that passes photos through silly image filters.

Quote:

If software was 'cheap' to develop, nobody would pay these prices for those who have taken the time to develop it.

Software is cheap to develop. By your logic no small, independent developers or game studios could possibly exist.

None of the purchases or losses you noted above were made to avoid the expenditures involved in development. Every one of them was strategic or outright foolish/incompetent in some way; that software was involved is almost entirely incidental.

"The patent system has been so excessively criticized with overstated claims by so many commentators that it has been substantially weakened in the last five to seven years," Michel said. (We at Ars had no idea our words were so powerful!)

Well good job then, keep it up, maybe we can kill this thing for good in another 5-7 years.

High court appointees should be forced to code and deploy an innovative app before they get their judgeships. When they get sued for using roll-over links or in-app purchasing by some troll in east Texas, they might think twice about software patents.

This, this this. Is. a. fantastic. idea.

They should require each judge to write a significant application that doesn't infringe *any* patent. Then, after about 5 years of not a single judge passing the test, maybe they might start thinking.

I'm still not sure whether I like any form of patents. They really only serve to ensure that the inventor has sufficient time/ability to monetize his research and invention. But without them, someone is simply just going to reverse engineer and produce it for cheaper.

In this day and age, 20 years for ANY patent without renewal is too long. Heck for many, 10 years is probably too long. Things like heavy manufacturing and pharmaceuticals need patents to survive. Manufacturing because those processes are what makes the product, aka trade secrets. And pharma needs them because of long research and development times.

There needs to be more flex in the structure. The one size fits all doesn't apply here and is clearly not working for some sectors. The system is in need of an overhaul. It worked for a while, but right now it is failing. I do agree on that.

Posner accused the Federal Circuit—the court Michel headed until 2010 and a sister court to Posner's own Seventh Circuit—of being too favorable to patent holders. A specialized court like the Federal Circuit, he said, tends to take a "promotional view of the activity it regulates." That "promotional view" has caused the court to become "too welcoming to patents," watering down the standards for patent validity.

This seems obvious. The advantage of judges that are supposedly well versed in the intricacies of patent law is clearly outweighed by the negative effect of a tiny, intellectually inbred court handling essentially all national patent law.

Virtually every 'first mover' in the tech industry is a has-been already. Patents would neither have helped nor harmed them, they are irrelevent to the issue.

But their patents linger on, causing harm in the industry.

Quote:

And costs aren't remotely as low as he thinks. Microsoft just spent $8 billion on Skype.

Which is irrelevant from a developmental perspective. Microsoft spent $8B not because the development of a competing solution would have been hard, but because Microsoft wanted the brand and the customer base.

Quote:

Google spent how many billion acquiring Android, and another $12.5 billion for Motorola.

Android was acquired for $50M, which IMO was too much. Motorola was bought, apparently, purely for the patents it possesses so Google could defend itself from competitors that like to abuse the system.

Quote:

HP (mis)spent billions on WebOS.

Managerial incompetence has its costs, yes.

Quote:

Smaller app developers are bought all the time for millions if not hundreds of millions.

Or billions, if you're willing to let your foolish CEO write the check for something that passes photos through silly image filters.

Quote:

If software was 'cheap' to develop, nobody would pay these prices for those who have taken the time to develop it.

Software is cheap to develop. By your logic no small, independent developers or game studios could possibly exist.

None of the purchases or losses you noted above were made to avoid the expenditures involved in development. Every one of them was strategic or outright foolish/incompetent in some way; that software was involved is almost entirely incidental.

sprockkets wrote:

reflex-croft wrote:

Every single thing in existence is mathematics. Ask any physicist. Software is no moreso than chemistry. Both are patentable.

...and that's why every "software" patent says "system and methods" instead of software, and nearly all of them obvious to anyone skilled in the arts...

He argued this is particularly true in software, an industry where product development costs are low and first-mover advantages can be significant.

Wow, this is amazingly out of touch. Back when I worked on Windows in 1999-2001, estimated development costs were $1 million per day, and $1.5 million per day in ongoing support. I'm certain it costs far more to develop and maintain today than it did more than a decade ago.[/quote[Yes, Windows is certainly a good representative of typical development costs.

Quote:

The second part is also a joke. Its extremely difficult to find a section of the software industry still dominated by the first mover, whether we are talking spreadsheets and office apps, web browsers, social media or music services. When is the last time you used Napster to play some music in WinAMP on your Palm Pre and then shared that info with your family on Friendster, accessed via Mosiac which was booted on a system running the latest GUI OS descended from DR-DOS?

First mover means shit in this industry, and patents have nothing to do with it.

I think you misunderstand the meaning of the first mover advantage here. The first mover advantage is how you capitalize on an innovation. If you fail to continue to innovate and you've haven't succeeded in vendor lock-in, then you will get left behind.

He argued this is particularly true in software, an industry where product development costs are low and first-mover advantages can be significant.

Wow, this is amazingly out of touch. Back when I worked on Windows in 1999-2001, estimated development costs were $1 million per day, and $1.5 million per day in ongoing support. I'm certain it costs far more to develop and maintain today than it did more than a decade ago.

Oh gee, a ginormous piece of software is expensive to write, you sure refuted him. There are plenty of one or two man outfits writing software, but that's irrelevant anyways, code is covered by copyright. The point is that "innovation" or "invention" in software isn't nearly as expensive as in real world, you can do it in your basement. "One click ordering" didn't require an electron microscope or double blind studies to "create".

You are arguing with the guy out of context.

Quote:

The second part is also a joke. Its extremely difficult to find a section of the software industry still dominated by the first mover, whether we are talking spreadsheets and office apps, web browsers, social media or music services. When is the last time you used Napster to play some music in WinAMP on your Palm Pre and then shared that info with your family on Friendster, accessed via Mosiac which was booted on a system running the latest GUI OS descended from DR-DOS?

First mover means shit in this industry, and patents have nothing to do with it.

And yeah, because the first mover advantage sometimes doesn't give you a monopoly forever and always it "means shit". All it has to do is give enough of a payoff to have made the project worthwhile (actually it just has to look like it will before the decision to go ahead with a project is made),